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Facts
The assessee filed an appeal with the CIT(A) after a delay of 118 days. The CIT(A) dismissed the appeal without adjudicating on merits due to the delay, as no sufficient cause for condonation was provided. The assessee argued that the delay was unintentional and due to a change in advice from consultants.
Held
The Tribunal condoned the delay in filing the appeal, considering the affidavit filed by the assessee. The matter was restored to the file of the CIT(A) for adjudication on merits, providing one more opportunity to the assessee.
Key Issues
Whether the delay in filing the appeal before the CIT(A) was liable to be condoned, and if so, whether the appeal should be restored to the CIT(A) for adjudication on merits.
Sections Cited
246A, 143(1), 36(1)(va), 154, 5
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI GAGAN GOYAL, AM vk;dj vihy la-@ITA No.1093/JPR/2024
vkns'k@ORDER PER: DR. S. SEETHALAKSHMI, J.M. This is an appeal filed by the assessee against the order of the ld. Addl.CIT(A)-11, Mumbai dated 21-06-2024 for the assessment year 2021-22 raising therein following grounds of appeal.
1. That the appellant contends that the Ld. Commissioner of Income Tax (Appeals) (Ld. CIT(A)) fundamentally erred by refusing to address the case on merits. This failure is not only unjustified but also contrary to established legal principles. The appellant respectfully submits that the order passed by Ld. CIT(A) is flawed and should be quashed accordingly.
2. The appellant asserts that the Ld. CIT(A) made an error in not condoning the delay in the filing of the appeal. This decision is considered unjustified and in violation of the Singdwala Warehousing & Logistics Pvt. Ltd. vs. ITO principles of natural justice. The appellant requests that the order passed by Ld. CIT(A) on this matter, being invalid be quashed.
3. That the Ld. CIT(A) rendered a decision without ensuring proper understanding of the case facts, resulting in an adhoc and unsatisfactory judgment. The appellant maintains that such a decision is legally deficient and seeks that the order of Ld. CIT(A) be quashed on these grounds.
That the appellant reserves the right to add to, alter, amend, or modify the grounds of appeal prior to or during the hearing.”
At the outset of the hearing, the Bench noticed that the ld.CIT(A) has 2.1 dismissed the appeal of the assessee on the ground of not condoning the delay of 118 days, by observing at para 5 to 7 of his order as under:-
5. Observation: 5.1 Before going into the merits of the case it is necessary to decide the issue if late filing of appeal. On perusal of form 35 it is seen that the appeal u/s. 246A of the Act has been filed on 19/01/2023. The intimation u/s 143(1) was served on the appellant on 24/08/2022, therefore the appeal should have been filed on or before 23/09/2022. There is a delay of 118 days in filing the appeal. 5.2 Before going into the merits of the case the issue of late filing of appeal is to be adjudicated first as this shall have a bearing on the validity of appeal before the undersigned. From records it is seen that order u/s. 143(1) was passed on 24/08/2022 and served on the assessee on 24/08/2022 as claimed. The appeal u/s 246A should have been filed on or before 23/09/2022. The present appeal has been filed on 19/01/2023 thereby there is a delay of 118 days in filing the appeal. On perusal of form 35 it is seen that the appellant has not requested for condonation of delay in filing the appeal and reasons have been not mentioned in column no. 15 of form 35. The extract of form 35 is reproduced below :- Appeal filing details: 14. Whether there is delay in filing appeal No 15. If reply to 14 is yes, enter the grounds of condonation of delay (not exceeding 500 words) 16. Details of appeal fees paid 5.3 It can be seen there is a delay of 118 days in filing the appeal. The appellant has not cited any reason in the form 35 in column 15 as well as the appellant misreported in column 14 that there was no delay in filing appeal. Hence, no reasonable cause has been cited by the appellant for this delay in filing of appeal. Section 5 of the limitation Act 1963 defines what should be considered if there is any delay on overstepping the deadlines mentioned in a statute. The crux can be summarized as under that- 1. There should be sufficient cause and 2. Delay should not be as a result of deliberate inaction or negligence On perusal of column of form 35 at point 15 the appellant has not mentioned any reason for delay as well as no reply to DIN & Letter No: ITBA/APL/5/28/2023- 24/1058506503(1) on 06/12/2023 was submitted against the deficiency letter issued on the appellant. This reflects the casual approach of the appellant. Since there is non acceptance of the fact that the appeal was filed late, there is no cause available in for 35 of appeal memo. In the absence of any reasonable cause, it can be assumed that the appellant has noting to offer in this regard and the appeal is decided accordingly. Various courts have tried to define what is a reasonable cause. In the case of Ajay Dabra Vs Pyare ram & others (SC) No. 15793 of 2019 dated 31-01-2023 has rightly put it as under: - What we have here is a purely Civil matter. An appeal has to be filed within the stipulated period, prescribed under the law. Belated appeal can only be condoned, when sufficient reason is shown before the court for the delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true that the courts should not be pedantic in their approach while condoning the delay, and explanation of each day's delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay." 5.3.1 In the case of Ram Lal Vs. Rewa Coalfields Ltd. AIR 1962 SC 361, the Hon'ble Courts held as under: - "Even if sufficient cause has been shown, the party is not entitied to the condonation of delay in question as a matter of right. Proof of sufficient cause is a condition precedent in the exercise of the discretionary jurisdiction Singdwala Warehousing & Logistics Pvt. Ltd. vs. ITO 5.3.2 In the case of Balwant Singh Hon'ble Courts held as under Jagdish Sing. (2010) 8 SCC 685, the "We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned." 5.3.3 in the case of Omate Traders Private Limited Vs. the Income Tax Officer Mumbai (Bombay HC), the Hon'ble Courts held as under "The action which can be condoned by the court should fall wither the scope of normal human conduct or normal conduct of a itigant. While Section 5 of the Lantation Act is being interpreted liberally, it cannot be so šberally that is without any justification since condonation of delay in a mechanical or routine manner wil jeopardize the legislative intent behind section 5.” 5.4 Following the discussions above, and considering the opinion expressed by Hon'ble Courts I rule that there is no condonation of delay application filed and therefore no sufficient cause given by the appellant to file the appeal delayed by 118 days. As a consequence the appeal filed beyond the due date of filing appeal without reasonable cause is rejected. 5.5 Since condonation of delay is not granted, there is no need to adjudication on merits of the case. In this regard, reliance is placed in the case of State of Uttar Pradesh & Ors vs. M/s Satish Chand Shivhare and Brothers SLP (CIVIL) No. 5301 of 2022 dated 04th April 2022 wherein the Hon'ble Court held as under: - "If delay is not condoned, no adjudication on merits is warranted".
Decision:- In view of the above discussion and observations, the appeal filed by the appellant is dismissed.
In the result, the appeal is dismissed.”
2.2 During the course of hearing the ld. AR of the assessee prayed that the ld.CIT(A) has dismissed the appeal on the ground of delay of 118 day in late filing Singdwala Warehousing & Logistics Pvt. Ltd. vs. ITO the appeal before the ld. CIT(A) but not decided the appeal on merit. For the reason of delay in late filing the appeal, the assesseee has filed an affidavit deposing therein as under:-
‘’I, Sanjay Agarwal 44 S/o Sita Ram Agarwal R/O Plot No 16, Sector 9, Vidhyadhar Nagar, Jaipur, Rajasthan 302039 in capacity of director of Mis Singodwala Warehousing & Logistics Pvt. Lid Jaipur (hereinafter referred to as the Company) so hereof solemnly declare the following 1. That an intimation u/s 143(1) of the Income Tax Act 1961 was passed in case of the Company for the AY 2021-22 on 24.08.2022 2. That the appeal against the said intimation was filed by us on 19.01.2023 3. That in the meanwhile period we were prima facie suggested by our consultant that denial of deduction u/s 36(1)(va) is a fit case for filing rectification request u/s 154 of the Act, however later we were suggested by the tax advisor to file an appeal rather than contesting the matter under rectification.
4. Unfortunately, at the time of filing appeal before CIT(A) in form 35 we therefore could not mention that there was delay in filing the appeal before CIT(A).